WH: We still have confidence in Donald Verilli

posted at 11:35 am on March 28, 2012 by Ed Morrissey

If so, the Obama administration might be alone on the Left in saying so. After the disastrous session of oral arguments on the individual mandate yesterday — which Jeffrey Toobin called “a train wreck for the administration” — most of ObamaCare’s backers were not exactly generous with Verilli. At Mother Jones, Adam Serwer called Verilli’s performance “abysmal,” and the Washington Post’s Ezra Klein criticized his delivery and noted that the liberal justices had to rescue him. A couple of journalists compared him to arguably incompetent sports figures like JaVale McGee and Billy Cundiff. That’s the kind of notoriety that Solicitors General rarely get, and never want.

So far, though, the Obama administration stands behind him, perhaps because they don’t have any relief warming up in the bullpen:

“Mr. Verrilli is an extraordinarily talented advocate who possesses a sharp mind, keen judgment, and unquestionable integrity. He ably and skillfully represented the United States before the Supreme Court yesterday, and we have every confidence that he will continue to do so,” White House counsel Kathryn Ruemmler said in a statement.

Is the White House arguing that Verilli couldn’t offer a coherent defense not because he’s not capable of doing so, but that he’s defending the indefensible? That’s what the RNC thinks, which rides to Verilli’s rescue in a way with their new ad:

Ouch. Today should go a little better, however, as the Supreme Court moves away from the individual mandate and focuses on severability and the expanded Medicaid mandate. Those are issues where the administration has more of an arguable position, especially on Medicaid:

The Supreme Court will complete its review of President Obama’s health care law Wednesday by considering whether all of the law must fall if part of it is found unconstitutional, and whether the law’s proposed Medicaid expansion violates the federal-state partnership.

The Medicaid expansion decision might have the most lasting impact on the federal government’s ability to use its spending power to pressure state action. The Supreme Court has said there is a limit to what the government can force states to do in order to receive federal funds — a condition cannot be “so coercive as to pass the point at which pressure turns into compulsion.” But the court has yet to find a case where the federal government has gone too far.

Once again, the justices may look for a limiting principle, but at least this time the precedent has long existed for federal control of Medicaid decisions. As Steven den Beste wrote earlier today, severability is the key — even more so after yesterday’s debacle for ObamaCare backers. If the court finds that the lack of a severability clause expresses the wish of Congress, then overturning any part of ObamaCare will force them to throw the entire bill out (including the Medicaid expansion). It will be difficult to explain how the removal of the severability clause during the legislative process was anything other than deliberate, but then again, the court found a right to abortion in an emanation from a penumbra nearly 40 years ago, so anything is possible. A lack of severability would bring us back to square one — and utterly negate two years of work by Obama and Democrats.

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Just as a hypothetical what do you suppose might happen if the Supremes rule against the entire act and Obama just announces that he’s going to ignore them? Not that a lecturer in constitutional law would ever consider such a thing.

Obama’s administration has been a parade of dopes and odd balls. I don’t think O is much judge of talent. I was able to identify the SG’s logical progression, something like God is love…love is blind…Stevie Wonder must be god? That works!

The legislative history is three years old. Dems had a severability clause in this thing. Then they yanked it. And then they passed it.

How much clearer does legislative intent need to be?

SCOTUS may go 5-4 on the mandate, but they have to go 9-0 on severability.

BuckeyeSam on March 28, 2012 at 11:43 AM

Historically, legislative severability provisions have been treated by the courts as “advisory”and an indication of legislative intent, but they have never felt bound by them. Hence, the absence of such a clause as here, and even though it was withdrawn, is not binding but it’s inclusion and subsequent withdrawal gives some ammunition to the justices who rightly would rule the entire act unconstitutional following a finding that the mandate was unconstitutional.